The United States v. A Quantity of Distilled Spirits, &c.

NOVEMBER, 1870.

THE UNITED STATES v. A QUANITY OF DISTILLED SPIRITS, &c., FOUND AT 55TH STREET, BETWEEN 10TH & 11TH AVENUES.

INTERNAL REVENUE.-PERSONATION OF BONDSMAN. ESTOPPEL.AGREEMENT WITH THE UNITED STATES DISTRICT ATTORNEY.COMPROMISE.

A surety, who had signed a stipulation for the release of property seized at the suit of the United States, and against whom judgment had afterwards been entered up, and an execution issued, applied to open the judgment, and set aside the execution, on two grounds: (1.) That he signed the bond on the representation that it should also be signed by one S., and that it was not signed by S., but by one B., who falsely personated S. (2.) That, after his property had been seized under the execution, it was agreed between him and the United States District Attorney, that, if he would give certain information against two other parties, his property should be released; and that he gave the information, and the parties were indicted, and thereupon his property was released, but had now been seized again on an alias execution:

Held, That it appeared, on the facts, that the surety was not only aware of the personation of S. by B., but himself procured such personation, and that, therefore, B. was, to all intents and purposes, S., as against the surety and his liability on his bond.

That his alleged agreement with the District Attorney was not established, but, if it was, it would not avail him as a legal ground for the interposition of the Court. The agreement set up being a compromise of a case arising under the Internal Revenue laws, would not be valid without the concurrence of the Commissioner of Internal Revenue, the Secretary of the Treasury and the Attorney General.

BLATCHFORD, J. This is a motion by Henry Stubbin, one of the sureties or stipulators for value on the bond or stipulation given on the release of certain of the property seized in this suit, to open the judgment entered against him herein, and to set aside the execution issued therein, as against said Stubbin. The

The United States v. A Quantity of Distilled Spirits, &c.

grounds set forth in the moving affidavit, made by Stubbin, for granting the relief sought, are, (1.) That he executed the bond at the solicitation of one of the real owners of the property seized, and on his representation and assurance that the other surety named in the bond should be a well known and wealthy man named Michael Shafer, that he, Stubbin, and a man who called himself Michael Shafer, and to whom Stubbin was introduced, and with whom he then went to the place where the bond was executed, executed the bond, that he, Stubbin, subsequently ascertained that the man who called himself Michael Shafer was not of that name, but that his real name was Morris Brockman, and that he had falsely personated Michael Shafer, and executed the bond with him, Stubbin, by a false and forged name; (2.) That, after his property had been seized, under the said execution, he called with his counsel at the office of the United States District Attorney, and made a representation of the foregoing facts, and, after two or three interviews with three of the Assistant District Attorneys, and one interview with the District Attorney, it was agreed, that, if he would give all the information he possessed, and render what aid he could to the Government, in a prosecution, at that time intended to be instituted against two persons for conspiracy to defraud the Government, the execution against his property should be withdrawn, and he should never be disturbed in his quiet and peaceable enjoyment of the same; that, thereafter, criminal proceedings were commenced against such two persons, and he, Stubbin, was used as a witness against them, and did everything required of him by the Government, and an indictment, on his evidence, and other testimony, was found against such persons, and was still pending against them; that, immediately after such agreement was made, the execution against him was withdrawn, and the keeper in charge of his property was removed, and he supposed

The United States v. A Quantity of Distilled Spirits, &c.

that the proceedings against him were ended and determined; but that an alias execution had been issued, under which a deputy marshal had again seized his property, and a keeper had been placed in charge of it, and the District Attorney had expressed his determination to sell the property.

Voluminous testimony has been taken, under an order of reference, in respect to the matters set up, as grounds for granting the motion. The result of a careful examination of such testimony leads to the undoubting conclusion, that, in respect to both of such grounds, the matters of fact alleged by Stubbin are not proved. On the contrary, the evidence shows satisfactorily, that Stubbin knew, when he signed the bond, and when the man who called himself Michael Shafer signed the bond, that such man was not Michael Shafer, but was really Morris Brockman, and permitted, and indeed himself procured, such man to represent himself to the officers of the Government as Michael Shafer, and to execute the bond as Michael Shafer. This being so, such man was, to all intents and purposes, Michael Shafer, as against Stubbin and Stubbin's liability on the bond.

As to the agreement with the officers in the District Attorney's office, the extent of it is evidenced by the written instructions given at the time by the District Attorney to the marshal, which were only to the effect, that the marshal was to withdraw his keeper from the premises of Stubbin, and order such keeper to visit such premises occasionally, to see that all was right.

But, even if such agreement as set up were proved, it would not avail Stubbin, as a legal ground for the interposition of the Court. The agreement set up is substantially a compromise of the claim against Stubbin. The enforcement of the claim was to be perpetually stopped in consideration of something to be done by Stubbin, other than paying the claim. The case

The Steamboat Deer.

being one arising under the Internal Revenue laws, and the suit having been commenced, no compromise of the case could be made without the concurrence of the Commissioner of Internal Revenue, the Secretary of the Treasury and the Attorney General. (Act of July 20th, 1868, § 102, 15 U. S. Stat. at Large, 166; 12 Opinions of Attorneys General, 536, 552.)

The motion is denied, and the stay of proceedings must be vacated.

Robert N. Waite, for the motion.

T. Simons, (Assistant District Attorney), for the United States.

NOVEMBER, 1870.

THE STEAMBOAT DEER.

TUG AND TOW-NEGLIGENCE-PLEADING-UNSEAWORTHINESS.

A tug is liable for damages resulting, from negligence in her navigation, to a vessel in tow, whether she is towing under a contract or not.

A tug was towing a barge to a bulkhead, near which was a sunken pier, whose presence was known to the master of the tug, and on which the barge struck: Held, That the running of the barge upon the pier was conclusive evidence of negligence on the part of the tug, in the absence of proof of any vis major. The libel charged that the existence of the sunken pier was known to the tugand that, in place of avoiding it, the tug towed the barge upon it, but did not aver that it was done negligently, and the answer averred that the accident was not the result of any negligence on the part of the tug, and the case was tried on those pleadings:

The Steamboat Deer.

Held, That the libellant might amend the libel, by averring negligence, and thus accepting the issue tendered by the claimant, and the issue which was in fact tried.

Where the defence was set up that a barge, injured by being towed against a sunken pier, was too heavily loaded and was too weak:

Held, That, as it was not shown that she was too heavily loaded for a barge which was to perform her voyage without being subjected to the blow which she received, nor that she was not sufficiently strong for the ordinary purposes of the voyage she was on, the defence was not available.

BLATCHFORD, J. This is a libel to recover for the damages caused to a canal boat or barge and her cargo of brick, through her being run, while in tow of the steamboat Deer, on a sunken pier or dock at the foot of 25th street, East river, New York, on the 8th of May, 1869. The libellant was the owner of the boat, and had the cargo in charge as a common carrier. The libel alleges that the steamboat, for a consideration, undertook to tow the barge from the foot of Hubert street, North river, to a pier on the East river near the foot of 23d street; that, when she arrived off the foot of 23d street, she was directed to land the barge at the bulkhead between 25th and 26th streets, which she undertook to do; that, at the foot of 25th street, there was a sunken pier or dock, the existence of which was known to the persons navigating the steamboat; and that, in place of going sufficiently out into the channel, and avoiding the sunken pier, the steamboat towed the barge across or on the sunken pier, and caused her to strike amidships against one of the spiles or ties of the sunken pier, knocking two holes in her bottom near the bilge, and causing her to sink.

The answer avers, that the contract of towage, for the consideration, was to tow the barge to the 23d street pier, and not to a pier near the foot of 23d street; that the steamboat took the barge to the foot of 23d street; that, on arriving near there, the steamboat, as a matter of accommodation purely, and gratuitously, and without any compensation paid or to be paid therefor, under

BT. VOL. IV.-23